Quick answer: Under the BNSS, the First Schedule decides whether an offence is bailable or non-bailable. In a bailable offence, the accused has a legal right to bail under Section 478 BNSS. In a non-bailable offence, bail depends on the court’s discretion under Section 480 or Section 483, after it weighs gravity, evidence and flight risk.
Every FIR raises one urgent question: can the accused get bail at once? The answer turns on the line between bailable and non-bailable offences. Since 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the CrPC, governs this line.
What Are Bailable and Non-Bailable Offences Under BNSS?
Section 2(1)(c) BNSS defines a bailable offence. It means an offence that the First Schedule shows as bailable, or that another law makes bailable. Every other offence is non-bailable. The old CrPC carried the same definition in Section 2(a).
So the label depends on the Schedule entry, not on how serious the facts look.
How to Check Whether an Offence Is Bailable
You can check the status of any offence in four simple steps:
- Read the FIR: Note every section the police have invoked, including sub-sections.
- Open Part I of the First Schedule: It lists each BNS offence with columns for punishment, cognizability, bailability and the trial court.
- Use Part II for other laws: For offences under special statutes, Part II applies a punishment-based rule. Offences punishable with less than three years or with fine only are generally bailable. Offences carrying three years or more are generally non-bailable.
- Check the special law itself: Some statutes, such as the NDPS Act, override the Schedule and add stricter bail conditions.
Remember, one non-bailable section in the FIR changes the whole bail route.
Common Examples Under the BNS
- Usually bailable: defamation (Section 356 BNS) and voluntarily causing hurt (Section 115(2) BNS).
- Non-bailable: murder (Section 103), rape (Section 64), cruelty by husband or relatives (Section 85) and cheating with delivery of property (Section 318(4)).
However, sub-sections matter, so always confirm the exact Schedule entry.
Bail in a Bailable Offence: Section 478 BNSS
Section 478 BNSS carries forward Section 436 CrPC. The police officer or court must release the accused on bail once the accused offers a bond. The officer may only choose between a personal bond and a bond with sureties.
The section also protects poor accused persons. If the accused cannot furnish bail within a week of arrest, the court may treat them as indigent and release them on a personal bond. On the other hand, the court may refuse bail later if the accused breaks earlier bond conditions.
Bail in a Non-Bailable Offence: Sections 480 and 483
For non-bailable offences, bail is a matter of judicial discretion. A Magistrate considers bail under Section 480 BNSS. The Sessions Court and the High Court hold wider powers under Section 483. Courts weigh the nature of the accusation, the evidence, criminal antecedents and the risk of tampering or flight. Our guide on regular bail under BNSS explains this process step by step.
Key Case Law
- Rasiklal v. Kishore Khanchand Wadhwani (Supreme Court, 20 February 2009): The Court held that an accused in a bailable offence has an absolute and indefeasible right to bail. The court need not hear the complainant before it grants that bail. It may cancel such bail only on limited grounds, such as misuse of liberty or tampering.
- Satender Kumar Antil v. CBI (Supreme Court, 2022): The Court grouped offences into categories and issued bail guidelines. It also cautioned courts and police against needless arrests.
- Meetu Pareek v. State of Rajasthan (Rajasthan High Court, 27 August 2025): The petitioners spent 43 days in custody for offences recorded as bailable. The Court called bail in such cases a right, criticised mechanical remand and sought an explanation from the investigating officer.
FAQs on Bailable and Non-Bailable Offences
What is the difference between bailable and non-bailable offences?
In a bailable offence, bail is a right, and police or the court must grant it. In a non-bailable offence, the court decides bail at its discretion.
Who decides whether an offence is bailable?
The First Schedule of the BNSS decides it for BNS offences. For special laws, the statute itself or Part II of the Schedule applies.
Can police grant bail in a bailable offence?
Yes. The officer in charge of the police station must release the accused once the accused furnishes the required bond.
Can a court refuse bail in a bailable offence?
Ordinarily, no. However, the court may refuse bail if the accused broke the conditions of an earlier bail bond in the same case.
Is a non-bailable offence the same as no bail?
No. Courts regularly grant bail in non-bailable offences. They simply weigh the facts and risks first.
Lex Pleaders advises banks, NBFCs, businesses and individuals on bail, FIRs, criminal trials and appeals from the trial court to the Supreme Court. As a law firm in Delhi NCR, we act quickly when liberty is at stake. Write to us at lexpleadersindia@gmail.com to discuss your matter.
Disclaimer: This article offers general information only and does not constitute legal advice.